Defending Life 2008
Table of Contents
Physician-Assisted Suicide:
The inevitable slide toward euthanasia 
Physician-Assisted Suicide:
The inevitable slide toward euthanasia
By Mailee R. Smith
Staff Counsel, Americans United for Life
Physician-assisted suicide (PAS) has been available in the Netherlands since 1993.1 Since that time, the practice of euthanasia has become prominent, and many stories like the following have surfaced:
- One woman, unable to cope any longer with the illness of her husband, gave him an ultimatum: euthanasia or admission to a home for the chronically ill. Fearful of being left alone and at the mercy of strangers, the husband chose euthanasia. Despite the fact that the doctor was aware of the coercion, he performed the act anyway.2
- After stabilizing a cancer patient who did not desire euthanasia, a physician returned from the weekend to find that another physician had ended the patient's life without her consent. That physician admitted he did so because "she was not dying quickly enough and he needed space for another patient."3
- One physician ended the life of a nun without her consent because she was in excruciating pain and the doctor believed her faith would prohibit her from asking for death.4
While these stories seem nightmarish and unlikely to happen in the United States, both PAS and euthanasia are actively being marketed in our states, and terminally-ill patients are being forced into similarly coercive situations.5 To prevent the prevalence of euthanasia in the United States, state legislators must pass legislation designed to combat the drive toward the legalization of PAS.
Issues
On November 8, 1994, Oregon became the first state in the Union to authorize physician-assisted suicide of competent, terminally-ill patients.6 While a federal district court initially enjoined enforcement of the initiative (known as the Death with Dignity Act), the Ninth Circuit reversed it. In 2001, then-Attorney General John Ashcroft issued a directive stating that PAS is not a "legitimate medical purpose" and that substances regulated under the Controlled Substances Act could not legally be used for PAS. Supporters of PAS and euthanasia filed suit, and, in 2004, the Ninth Circuit ruled that the directive was illegal and unenforceable. The United States Supreme Court (USSC) heard oral argument in the case on November 30, 2005, and on January 17, 2006, the Court affirmed the Ninth Circuit's ruling, holding that Congress did not intend for the Attorney General to have such authority. However, the Court's previous decisions denying a federal constitutional right to assisted suicide remain firm.7
Supporters of PAS offer horrific stories of terminally-ill patients in deep distress to bolster their claim that PAS is needed to relieve the "unbearable pain and suffering" of terminally ill patients. Not only are these examples extremely rare and almost non-existent in real life,8 but the most frequently cited concerns of terminally-ill patients across all seven years of Oregon's annual reports9 are not pain and suffering, but the loss of personal autonomy and the decreased ability to participate in activities that make life enjoyable.10 Moreover, all pain experienced by terminally-ill patients can be relieved.11
Key Terms
- Assisted suicide is the act of suicide with the help of another party. Physician-assisted suicide specifically involves the help of a physician in performing the act of suicide. Such assistance usually entails the prescribing or dispensing of controlled substances that hasten death.
- Euthanasia involves the killing of one person by or with the physical assistance of another. Voluntary euthanasia is the ending of one life by another at the first person's request. Nonvoluntary euthanasia describes "a physician's ending the life of a patient incapable of giving or refusing consent."12 Involuntary euthanasia describes the termination of a competent patient's life without his or her consent.13
- Palliative care is the body of medical treatment dedicated to relieving the pain and suffering of patients with severe pain. It generally entails the use of analgesic medications, such as codeine and morphine.14 However, other pain relief techniques, such as physical therapy and neurosurgery, are also used.15
Talking Points
- The example of the Netherlands conclusively demonstrates that authorizing assisted suicide inevitably leads to involuntary euthanasia. Virtually every safeguard set up by the country has failed to protect patients.16 Regulation is impossible because 60 percent of cases are not reported.17 One study revealed that 0.08 percent of all deaths in the Netherlands were a result of euthanasia performed without a contemporaneous request from the patient; in the United States, that would equal 16,000 deaths a year from involuntary euthanasia.18 In other studies, one-fourth of physicians stated that they had "terminated the lives of patients without an explicit request."19 In another study, no request for death was made in over 80 percent of the cases.20
- The pain of all terminally-ill patients can be relieved. Ninety-five to ninety-eight percent of pain can be relieved through palliative care.21 The pain of the remaining patients can be relieved through sedation.22 While PAS proponents market the so-called "hard cases" -- those cases where pain is claimed to be unbearable -- proper palliative care makes the hard cases practically non-existent.
- The vast majority of terminally-ill patients do not desire suicide -- the overwhelming majority fight for life until the end.23 In most cases where patients request PAS, those requests are withdrawn when pain, depression, and other concerns are addressed.24
- The vast majority of PAS requests come from patients who are actually suffering from treatable mental disorders, typically depression.25 When depression is treated, most patients withdraw their requests for assisted suicide.26
- A patient's pain and suffering is inherently subjective and cannot be used as a gauge for who should be eligible for PAS.27 "Suffering is a distinctly human, not a medical, condition."28 As such, public policies that hinge on the notion of pain and suffering are uncontainable.29 In addition, any evaluation of pain and suffering would be left to a doctor's assessment which, ironically, depletes a patient's autonomy rather than preserves it.30
- In contrast to using controlled substances for assisting suicide, using them to control pain is a "legitimate medical purpose" under the Controlled Substances Act. The provision of pain medication and sedation is legally, medically, and ethically acceptable if it is intended to alleviate pain and is provided in accordance with accepted medical standards.31
- Minorities and disadvantaged peoples appear to be the most likely victims of PAS and involuntary and nonvoluntary euthanasia.32
- The proper response to pain and suffering is education and the wider use of effective palliative techniques -- not the elimination of the sufferer.33
Myths & Facts
Myth: Allowing assisted suicide will not encourage the slide toward euthanasia. Procedures and regulations can be put into place to ensure that PAS is only available for competent, terminally-ill patients.
Fact: In addition to the tragic example of the Netherlands is the fact that PAS is already available to terminally-ill patients in Oregon that are not enduring "unbearable pain and suffering" (which is an indication that it will not likely be limited to terminally-ill patients). For example, if PAS is acceptable for the terminally- ill without intractable pain, then those Americans with severe chronic pain who, unlike the terminally-ill, must live with such severe pain for many years to come, would also have a legitimate claim to PAS.34 Thus, there is no reason not to expect PAS to be available to severe chronic pain sufferers, then non-severe chronic pain sufferers, and then to those suffering from psychological pain or distress, as in the Netherlands.35 Equally illogical would seem the continued refusal of PAS to patients suffering from unbearable pain who cannot self-administer medication, while allowing PAS for patients who have no pain but can self-administer medication (indicating that the practice of euthanasia is imminent).36
After examining the issues surrounding PAS and voluntary euthanasia, the British House of Lords concluded that it would not be possible to secure limits on its use.37 It also does not appear that barricading one group of patients from PAS while allowing another group of patients to use PAS would pass constitutional muster.38
Myth: The availability of PAS will not inhibit the availability of palliative care.
Fact: Palliative care actually "languishes as a consequence" of the easy availability of PAS and euthanasia.39 Physicians are likely to grant requests for PAS before all avenues of palliative care have been explored.40 In addition, physicians are not pushed to better educate themselves on palliative care, and researchers spend less time looking for better palliative medications and techniques.41
Myth: PAS allows terminally-ill patients to preserve autonomy and dignity.
Fact: PAS "will ultimately weaken the autonomy of patients at the end of life."42 Not only is human dignity found in more than a healthy body and autonomous lifestyle, but "the dignity of human life itself precludes policies that would allow it to be disposed of so easily."43 Additionally, many PAS patients are coerced into suicide because of familial pressures and a desire not to be a burden on their families.44 They often feel a need to justify their decisions to stay alive.45 This is not the essence of autonomy or human dignity.
Myth: PAS is preferable because palliative medications result in unbearable side effects and may hasten death anyway.
Fact: Fears about side effects and the hastening of death are unfounded.46 In fact, those patients with severe pain actually become tolerant of palliative medicines, which minimizes side effects.47 There is also no evidence that pain medications hasten death if such medications are used correctly.48 In addition, doses can be increased to alleviate intensified pain as diseases progress.49
State of the States: Where Are We Now?
Current Law (map )
- Thirty-eight states expressly prohibit assisted suicide by statute: Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Virginia, Washington, and Wisconsin.
- Six states impliedly prohibit assisted suicide either by adopting the common law of crimes50 or by interpreting their homicide statutes to apply to active assistance in committing suicide: Alabama, Idaho, Massachusetts, North Carolina, Vermont, and West Virginia.
- Five states (and the District of Columbia) have not enacted statutes prohibiting assisted suicide, do not recognize common law crimes, and have no judicial decisions stating that assisted suicide is a form of homicide under general homicide laws: District of Columbia, Hawaii, Nevada, Ohio, Utah, and Wyoming.
- One state allows assisted suicide under certain circumstances: Oregon.
What Happened in 2007
- Four states considered measures legalizing assisted suicide in specified circumstances and under delineated conditions: Arizona, California, Hawaii, and Vermont.
- Hawaii considered a measure that would have defined assisted suicide as manslaughter.
- Three other states sought to strengthen prosecutors' options and/or punishment options in cases involving assisted suicide: Illinois, Kansas, and New York.
- Only a few states considered measures related to palliative care. Hawaii considered a measure providing financial and other resources for palliative care programs. Georgia considered a measure protecting physicians from prosecution when they administer drugs to terminally-ill patients to relieve pain (but which could result in the patient's death). Montana debated a measure establishing a bill of rights for terminally- ill patients.
What To Do In 2008
- States without an express statute or common law prohibiting PAS, such as Ohio, Utah, and Wyoming, should consider enacting legislation expressly prohibiting assisted suicide and making it a crime.
- Because a court may not recognize assisted suicide as a crime, states such as Alabama, Massachusetts, and North Carolina, who only impliedly prohibit assisted suicide, should also consider enacting legislation expressly prohibiting assisted suicide and making it a crime.
- States should consider legislation that encourages: 1) physicians to further their education in palliative care, and 2) hospitals to develop better palliative care programs. States should also consider legislation that would make it easier for the terminally ill to receive in-home hospice care, such as providing economic relief to patients and their families.
Endnotes
1. New York State Task Force on Life and the Law, When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context 2 (1994) [hereinafter Task Force].
2. Herbert Hendin, Seduced by Death: Doctors, Patients, and Assisted Suicide 142 (1998).
3. Id. at 19.
4. Id. at 141.
5. In his book Seduced by Death, Herbert Hendin relates the story of Louise, who suffered from an unnamed degenerative neurological disorder. Id. at 50-56. Death appeared imminent, and Louise requested that her doctor assist in her suicide. When Louise had second thoughts, her mother, a friend, her doctor, a reporter, and a member of Compassion in Dying all acted to convince her that suicide was the right decision. Id.
6. The initiative was voted on by Oregon citizens and was only narrowly approved.
7. See Gonzales v. Oregon, 546 U.S. 243 (2006); Washington v. Glucksberg, 521 U.S. 702 (1997); Vacco v. Quill, 521 U.S. 793 (1997).
8. Task Force, supra, at 40, 93; Hendin, supra, at 49.
9. Annual reports on the use of PAS in Oregon are mandated under the Death with Dignity Act.
10. See, e.g., Or. Dept. Human Serv., Seventh Annual Report on Oregon's Death with Dignity Act 15 (2005); Or. Dept. of Human Serv., Sixth Annual Report on Oregon's Death with Dignity Act 14 (2004).
11. See, e.g., Timothy E. Quill & Christine K. Cassel, "Professional Organizations' Position Statements on Physician-Assisted Suicide: A Case for Studied Neutrality," Annals of Internal Med. 138:3:208 (2003); American Geriatrics Society, "Brief as Amicus Curiae Urging Reversal of the Judgments Below" at Part I.B, Vacco v. Quill, 521 U.S. 793 (1997); Wesley J. Smith, Forced Exit: The Slippery Slope from Assisted Suicide to Legalized Murder 207 (1997); Ira R. Byock, "Why do we Make Dying so Miserable?," Washington Post, Jan. 22, 1997, at ¶ 6.
12. Hendin, supra, at 91 (emphasis added).
13. Id. at 92.
14. Task Force, supra, at 37.
15. For a more in-depth explanation of palliative care, see Americans United for Life, "Brief of Amicus Curiae in Support of Petitioners at 7-9," Gonzales v. Oregon (Sup. Ct. No. 04-623).
16. Hendin, supra, at 136.
17. Id. at 20.
18. Task Force, supra, at 134; Hendin, supra, at 91.
19 Hendin, supra, at 139. In 48 percent of those cases there was no request of any kind. Id.
20. Id. at 140.
21. Quill & Cassel, supra, at 208; Robert A. Burt, "Constitutionalizing Physician-Assisted Suicide: Will Lightning Strike Thrice?," 35 Duq. L. Rev. 159, 166 (1996); see also Americans United for Life, supra, at 6-7.
22. American Geriatrics Society, supra, at Part I.B; Smith, supra, at 207.
23. Task Force, supra at 9, 13, 72; Hendin, supra, at 34. Terminally- ill patients account for only two to four percent of all suicides. Hendin, supra, at 34 .
24. Task Force, supra, at 108; Hendin, supra, at 240.
25. Task Force, supra, at x, 13, 126. In one study, every terminally- ill patient who expressed a wish to die was suffering from major depression. Id. at 13.
26. Id. at x, 26. Treatment for depression resulted in 90 percent of patients ceasing their desire for suicide. Id. at 26.
27. Id. at 132.
28. Id. at 22 (emphasis added).
29. Id. at xv, 132.
30. Hendin, supra, at 192. "Suffering" may arise from a number of non-medical causes, such as social isolation, fear, and frustration of a goal, which are obviously unacceptable reasons to allow PAS. Task Force, supra, at 21, 135.
31. Id. at xi, 94 n.33; Americans United for Life, supra, at 9.
32, Task Force, supra, at 89-90, 100, 120, 125 n.14.
33. Common barriers to palliative care are the widespread lack of training of physicians in palliative care and fears about the side effects of palliative care medications. Americans United for Life, supra, at 10-15. Thus, education of both physicians and patients is a proper response to the pain and suffering of the terminally-ill.
34. New York State Task Force on Life and the Law, "When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context" 5 (Supp. 1997) [hereinafter Task Force Supp.]. Added to the plight of the non-terminally-ill chronic pain sufferers is the fact that the pain of the terminally-ill is actually better managed than that of chronic pain sufferers. Task Force, supra, at 23. An argument can be made that such sufferers actually have a stronger liberty interest in PAS than terminally-ill patients. Yale Kamisar, "The 'Right to Die': On Drawing (and Erasing) Lines," 35 Duq. L. Rev. 481, 510 (1996).
35. See, e.g., the story of "Netty Boomsma" in Hendin, supra, at 76-83. Few advocates of PAS argue that the right to PAS should be limited to the terminally-ill. Task Force, supra, at 74 n.113. One proposed model for PAS was limited to those with "incurable, debilitating disease who voluntarily request to end their lives." Hendin, supra, at 206. This would include patients with diabetes and arthritis. Id.
36. Id. at 261. In 1994, the New York Task Force on Life and the Law -- whose members held many different views on PAS and euthanasia -- unanimously concluded that the dangers of PAS vastly exceeded any possible benefits. Task Force, supra, at ix, 120.
37. Report from the Select Committee on Medical Ethics, House of Lords Session 1993-94, § 238. On May 12, 2006, the House of Lords again rejected proposed laws to allow PAS.
38. Eric Chevlen, "The Limits of Prognostication," 35 Duq. L. Rev. 337, 348 (1996). "If autonomy is the guiding principle and the determination of pain and suffering is so subjective, then any competent person . . . has the right to choose euthanasia." Hendin, supra, at 122. The New York State Task Force concluded that "it will be difficult, if not impossible, to contain the option to such a limited group . . . [N]o principled basis will exist to deny [other patients] this right." Task Force Supp., supra, at 5. The Task Force explains that if the right to refuse medical treatment is not limited to the terminally-ill, then PAS will not be limitable, either. Id. at 12-13.
39. Hendin, supra, at 244.
40. Task Force Supp., supra, at 4.
41. The availability of euthanasia appears to have contributed to the failure of palliative care in the Netherlands. Hendin, supra, at 15.
42. Task Force Supp., supra, at 18; see also Task Force, supra, at 134 (stating that while the "autonomy" of some patients may be extended, the autonomy of many others would be compromised with the legalization of PAS).
43. Task Force, supra, at 138.
44. See, e.g., Hendin, supra, at 50-56, 61, 128-32, 142.
45. Task Force, supra, at 95. See also id. at 99 (stating that "the so-called ‘right to die' all too easily becomes a duty to die").
46. See, e.g., id. at 44; Kamisar, supra, at 497.
47. Task Force, supra, at 162; American Medical Association, "Report 4 of the Council on Scientific Affairs: Aspects of Pain Management in Adults" (1995), available at http://www.ama-assn.org/ama/pub/category/13672.html (last visited Sept. 5, 2007). See also Americans United for Life, supra, at 11-13.
48. Task Force Supp., supra, at 17.
49. Task Force, supra, at 162. Even the two percent of patients requiring sedation can die peacefully, without suffering. American Geriatrics Society, supra, at III.D.; Hendin, supra, at 14.
50. I.e., assisted suicide was considered a form of homicide at common law.